Lipat, Jeanelle Rose R.

JD1 Consti1

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 86439 April 13, 1989
MARY CONCEPCION BAUTISTA, petitioner,
vs.
SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS
COMMITTEE ON JUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN
RIGHTS AND HESIQUIO R. MALLILLIN, respondents.
Mary Concepcion Bautista for and in her own behalf.
Christine A.Tomas Espinosa for private respondent Hesiquio R. Mallillin

PADILLA, J.:
The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled the
question of which appointments by the President, under the 1987 Constitution, are to be made
with and without the review of the Commission on Appointments. The Mison case was the
first major case under the 1987 Constitution and in construing Sec. 16, Art. VII of the 1987
Constitution which provides:
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in the courts, or in the heads of
the departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until the
next adjournment of the Congress.
this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission
and the country's experience under the 1935 and 1973 Constitutions, held that only those
appointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed
by the Commission on Appointments, namely, "the heads of the executive department,
ambassadors, other public ministers and consuls, or officers of the armed forces from the rank
of colonel or naval captain, and other officers whose appointments are vested in him in this

Bautista vs Salonga

Constitution." All other appointments by the President are to be made without the participation
of the Commission on Appointments. Accordingly, in the Mison case, the appointment of
therein respondent Salvador M. Mison as head of the Bureau of Customs, without the
confirmation of the Commission on Appointments, was held valid and in accordance with the
Constitution.
The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of
Sec. 16, Art. VII as designed by the framers of the 1987 Constitution. But the Constitution, as
construed by this Court in appropriate cases, is the supreme law of the land. And it cannot be
over-stressed that the strength of the Constitution, with all its imperfections, lies in the respect
and obedience accorded to it by the people, especially the officials of government, who are the
subjects of its commands.
Barely a year after Mison, the Court is again confronted with a similar question, this time,
whether or not the appointment by the President of the Chairman of the Commission on
Human Rights (CHR), an "independent office" created by the 1987 Constitution, is to be made
with or without the confirmation of the Commission on Appointments (CA, for brevity). Once
more, as in Mison, the Court will resolve the issue irrespective of the parties involved in the
litigation, mindful that what really matters are the principles that will guide this
Administration and others in the years to come.
Since the position of Chairman of the Commission on Human Rights is not among the
positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the confirmation of the Commission on
Appointments, it follows that the appointment by the President of the Chairman of the (CHR),
is to be made without the review or participation of the Commission on Appointments.
To be more precise, the appointment of the Chairman and Members of the Commission on
Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen
and Members of the Civil Service Commission, the Commission on Elections and the
Commission on Audit, whose appointments are expressly vested by the Constitution in the
President with the consent of the Commission on Appointments. 2
The President appoints the Chairman and Members of the Commission on Human Rights
pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the
Commission on Appointments because they are among the officers of government "whom he
(the President) may be authorized by law to appoint." And Section 2(c), Executive Order No.
163, 5 May 1987, authorizes the President to appoint the Chairman and Members of the
Commission on Human Rights. It provides:
(c) The Chairman and the Members of the Commission on Human Rights shall be
appointed by the President for a term of seven years without reappointment.
Appointment to any vacancy shall be only for the unexpired term of the predecessor.
The above conclusions appear to be plainly evident and, therefore, irresistible. However, the
presence in this case of certain elements absent in the Mison case makes necessary a
closer scrutiny. The facts are therefore essential.

Lipat, Jeanelle Rose R.

JD1 Consti1

On 27 August 1987, the President of the Philippines designated herein petitioner Mary
Concepcion Bautista as"Acting Chairman, Commission on Human Rights." The letter of
designation reads:
27 August 1987

Bautista vs Salonga

CORAZON C. AQUINO 5
It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the
President that she could qualify and enter upon the performance of the duties of the office of
Chairman of the Commission on Human Rights, requiring her to furnish the office of the
President and the Civil Service Commission with copies of her oath of office.

M a d a m:
You are hereby designated ACTING CHAIRMAN, COMMISSION ON
HUMAN RIGHTS, to succeed the late Senator Jose W. Diokno and Justice
J. B. L. Reyes.

On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan,
petitioner Bautista took her oath of office by virtue of her appointment as Chairman of the
Commission on Human Rights. The full text of the oath of office is as follows:
OATH OF OFFICE

Very truly yours,

CORAZON C. AQUINO
HON. MARY CONCEPCION BAUTISTA 3
Realizing perhaps the need for a permanent chairman and members of the Commission on
Human Rights, befitting an independent office, as mandated by the Constitution, 4 the
President of the Philippines on 17 December 1988 extended to petitioner Bautista a permanent
appointment as Chairman of the Commission. The appointment letter is as follows:

I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street,

Bangkal, Makati, Metro Manila having been appointed to the position
of CHAIRMAN of the Commission on Human Rights, do solemnly swear
that I will discharge to the best of my ability all the duties and
responsibilities of the office to which I have been appointed; uphold the
Constitution of the Republic of the Philippines, and obey all the laws of
the land without mental reservation or purpose of evasion.
SO HELP ME GOD.
MARY CONCEPCION BAUTISTA

17 December 1988
The Honorable
The Chairman
Commission on Human Rights
Pasig, Metro Manila

SUBSCRIBED AND SWORN TO before me this 22nd day of December

in the year of Our Lord, 1988 in Manila.
MARCELO B. FERNAN
Chief
Supreme Court of the Philippines 6

M a d a m:
Pursuant to the provisions of existing laws, the following are hereby
appointed to the positions indicated opposite their respective names in the
Commission on Human Rights:
MARY CONCEPCION BAUTISTA Chairman
ABELARDO L. APORTADERA, JR Member
SAMUEL
SORIANO

Member
HESIQUIO
R.
MALLILLIN

Member
NARCISO C. MONTEIRO Member
By virtue hereof, they may qualify and enter upon the performance of the
duties of the office furnishing this Office and the Civil Service
Commission with copies of their oath of office.

Justice

Immediately, after taking her oath of office as Chairman of the Commission on Human Rights,
petitioner Bautista discharged the functions and duties of the Office of Chairman of the
Commission on Human Rights which, as previously stated, she had originally held merely in
an acting capacity beginning 27 August 1987.
On 9 January 1989, petitioner Bautista received a letter from the Secretary of the Commission
on Appointments requesting her to submit to the Commission certain information and
documents as required by its rules in connection with the confirmation of her appointment as
Chairman of the Commission on Human Rights. 7 On 10 January 1989, the Commission on
Appointments' Secretary again wrote petitioner Bautista requesting her presence at a meeting
of the Commission on Appointments Committee on Justice, Judicial and Bar Council and
Human Rights set for 19 January 1989 at 9 A.M. at the Conference Room, 8th Floor, Kanlaon
Tower I, Roxas Boulevard, Pasay City that would deliberate on her appointment as Chairman
of the Commission on Human Rights. 8

Very truly yours,

2

Lipat, Jeanelle Rose R.

JD1 Consti1

Bautista vs Salonga

On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on

Appointments stating, for the reasons therein given, why she considered the Commission on
Appointments as having no jurisdiction to review her appointment as Chairman of the
Commission on Human Rights. The petitioner's letter to the Commission on Appointments'
Chairman reads:
January 13, 1 989
SENATE PRESIDENT JOVITO R. SALONGA
Chairman
Commission on Appointments
Senate, Manila

includes even Congress itself, in the performance of its

functions which may affect human rights;
c. may call on all agencies of government for the
implementation of its mandate.
The powers of the Commission on Appointments is in fact a derogation of
the Chief Executive's appointing power and therefore the grant of that
authority to review a valid exercise of the executive power can never be
presumed. It must be expressly granted.

S i r:

The Commission on Appointments has no jurisdiction under the

Constitution to review appointments by the President of Commissioners of
the Commission on Human Rights.

We acknowledge receipt of the communication from the Commission on

Appointments requesting our appearance on January 19, 1989 for
deliberation on our appointments.

In view of the foregoing considerations, as Chairman of an independent

constitutional office. I cannot submit myself to the Commission on
Appointments for the purpose of confirming or rejecting my appointment.

We respectfully submit that the appointments of the Commission

commissioners of the Human Rights Commission are not subject to
confirmation by the Commission on Appointments.

Very truly yours,

The Constitution, in Article VII Section 16 which expressly vested on the

President the appointing power, has expressly mentioned the government
officials whose appointments are subject to the confirmation of the
Commission on Appointments of Congress. The Commissioners of the
Commission on Human Rights are not included among those.
Where the confirmation of the Commission on Appointments is required,
as in the case of the Constitutional Commissions such as the Commission
on Audit, Civil Service Commission and the Commission on Elections, it
was expressly provided that the nominations will be subject to
confirmation of Commission on Appointments. The exclusion again of the
Commission on Human Rights, a constitutional office, from this
enumeration is a clear denial of authority to the Commission on
Appointments to review our appointments to the Commission on Human
Rights.
Furthermore, the Constitution specifically provides that this Commission
is an independent officewhich:
a. must investigate all forms of human rights
violations involving civil and political rights;
b. shall monitor the government's compliance in all
our treaty obligations on human rights. We submit
that, the monitoring of all agencies of government,

MARY
Chairman 9

CONCEPCION

BAUTISTA

In respondent Commission's comment (in this case), dated 3 February 1989, there is attached
as Annex 1 a letter of the Commission on Appointments' Secretary to the Executive Secretary,
Hon. Catalino Macaraig, Jr. making reference to the "ad interim appointment which Her
Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson
of the Commission on Human Rights" 10 and informing Secretary Macaraig that, as previously
conveyed to him in a letter of 25 January 1989, the Commission on Appointments disapproved
petitioner Bautista's "ad interim appointment' as Chairperson of the Commission on Human
Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments.
The letter reads:
1 February 1989
HON. CATALINO MACARAIG, JR.
Executive Secretary
Malacanang, Manila
S i r:
This refers to the ad interim appointment which Her Excellency extended
to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of
the Commission on Human Rights.
As we conveyed to you in our letter of 25 January 1989, the Commission
on Appointments, assembled in plenary (session) on the same day,
3

Lipat, Jeanelle Rose R.

JD1 Consti1

disapproved Atty. Bautista's ad interim appointment as Chairperson of the

Commission on Human Rights in view of her refusal to submit to the
jurisdiction of the Commission on Appointments.
This is to inform you that the Commission on Appointments, likewise
assembled in plenary (session) earlier today, denied Senator Mamintal A.
J. Tamano's motion for reconsideration of the disapproval of Atty.
Bautista's ad interim appointment as Chairperson of the Commission on
Human Rights.
Very truly yours,

Bautista vs Salonga

Aquino names replacement for MaryCon

President Aquino has named replacement for Presidential Commission on
Human Rights Chairman Mary Concepcion Bautista whose appointment
was rejected anew by the Congressional commission on appointments.
The President designated PCHR commissioner Hesiquio R. Mallillin as
acting chairman of the Commission pending the resolution of Bautista's
case which had been elevated to the Supreme Court.
The President's action followed after Congressional Commission on
Appointments Chairman, Senate President Jovito Salonga declared
Bautista can no longer hold on to her position after her appointment was
not confirmed for the second time.

RAOUL V. VICTORINO
Secretary 11
On the same date (1 February 1989), the Commission on Appointments' Secretary informed
petitioner Bautista that the motion for reconsideration of the disapproval of her " ad
interim appointment as Chairman of the Commission on Human Rights" was denied by the
Commission on Appointments. The letter reads as follows:

For all practical purposes, Salonga said Bautista can be accused of

usurpation of authority if she insists to stay on her office.
In effect, the President had asked Bautista to vacate her office and give
way to Mallillin (Mari Villa) 13

1 February 1989
ATTY.
MARY
Commission
on
Integrated
Bar
Bldg. Pasig, Metro Manila

CONCEPCION
Human
of
the

BAUTISTA
Rights
Philippines

Dear Atty. Bautista:

Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on
Appointments, the denial by the Commission on Appointments, assembled
in plenary (session) earlier today, of Senator Mamintal A.J. Tamano's
motion for reconsideration of the disapproval of your ad
interim appointment as Chairperson of the Commission on Human Rights
is respectfully conveyed.
Thank you for your attention.
Very truly yours,
RAOUL V. VICTORINO
Secretary 12
In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news
item appearing in the 3 February 1989 issue of the "Manila Standard" reporting that the
President had designated PCHR Commissioner Hesiquio R. Mallillin as "Acting Chairman of
the Commission" pending the resolution of Bautista's case which had been elevated to the
Supreme Court. The news item is here quoted in full, thus

On 20 January 1989, or even before the respondent Commission on Appointments had acted
on her "ad interimappointment as Chairman of the Commission on Human Rights" petitioner
Bautista filed with this Court the present petition for certiorari with a prayer for the immediate
issuance of a restraining order, to declare "as unlawful and unconstitutional and without any
legal force and effect any action of the Commission on Appointments as well as of the
Committee on Justice, Judicial and Bar Council and Human Rights, on the lawfully extended
appointment of the petitioner as Chairman of the Commission on Human Rights, on the
ground that they have no lawful and constitutional authority to confirm and to review her
appointment." 14
The prayer for temporary restraining order was "to enjoin the respondent Commission on
Appointments not to proceed further with their deliberation and/or proceedings on the
appointment of the petitioner ... nor to enforce, implement or act on any order, resolution, etc.
issued in the course of their deliberations." 15
Respondents were required to file comment within ten (10) days. 16 On 7 February 1989,
petitioner filed an amended petition, with urgent motion for restraining order, impleading
Commissioner Hesiquio R. Mallillin the designated acting chairman as party respondent and
praying for the nullification of his appointment. The succeeding day, a supplemental urgent exparte motion was filed by petitioner seeking to restrain respondent Mallillin from continuing to
exercise the functions of chairman and to refrain from demanding courtesy resignations from
officers or separating or dismissing employees of the Commission.
Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court
resolved to issue a temporary restraining order directing respondent Mallillin to cease and
desist from effecting the dismissal, courtesy resignation, i removal and reorganization and
other similar personnel actions. 17 Respondents were likewise required to comment on said
amended petition with allowance for petitioner to file a reply within two (2) days from receipt
of a copy thereof.
4

Lipat, Jeanelle Rose R.

JD1 Consti1

Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC

and Human Rights filed a comment to the amended petition on 21 February 1989. 18 Petitioner
filed her reply. 19 On 24 February 1989, respondent Mallillin filed a separate comment. 20 The
Court required petitioner to reply to respondent Mallillin's comment . 21Petitioner filed her
reply. 22
In deference to the Commission on Appointments, an instrumentality of a co-ordinate and coequal branch of government, the Court did not issue a temporary restraining order directed
against it. However, this does not mean that the issues raised by the petition, as met by the
respondents' comments, will not be resolved in this case. The Court will not shirk from its duty
as the final arbiter of constitutional issues, in the same way that it did not in Mison.
As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista
was extended by Her Excellency, the President a permanent appointment as Chairman of the
Commission on Human Rights on 17 December 1988. Before this date, she was merely the
"Acting Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an
appointment that was for the President solely to make, i.e., not an appointment to be submitted
for review and confirmation (or rejection) by the Commission on Appointments. This is in
accordance with Sec. 16, Art. VII of the 1987 Constitution and the doctrine in Mison which is
here reiterated.
The threshold question that has really come to the fore is whether the President, subsequent to
her act of 17 December 1988, and after petitioner Bautista had qualified for the office to which
she had been appointed, by taking the oath of office and actually assuming and discharging the
functions and duties thereof, could extend another appointment to the petitioner on 14
January 1989, an "ad interim appointment" as termed by the respondent Commission on
Appointments or any other kind of appointment to the same office of Chairman of the
Commission on Human Rights that called for confirmation by the Commission on
Appointments.
The Court, with all due respect to both the Executive and Legislative Departments of
government, and after careful deliberation, is constrained to hold and rule in the negative.
When Her Excellency, the President converted petitioner Bautista's designation as Acting
Chairman to a permanent appointment as Chairman of the Commission on Human Rights on
17 December 1988, significantly she advised Bautista (in the same appointment letter) that, by
virtue of such appointment, she could qualify and enter upon the performance of the duties of
the office (of Chairman of the Commission on Human Rights). All that remained for Bautista
to do was to reject or accept the appointment. Obviously, she accepted the appointment by
taking her oath of office before the Chief Justice of the Supreme Court, Hon. Marcelo B.
Fernan and assuming immediately thereafter the functions and duties of the Chairman of the
Commission on Human Rights. Bautista's appointment therefore on 17 December 1988 as
Chairman of the Commission on Human Rights was a completed act on the part of the
President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the celebrated case of
Marbury vs. Madison. 23
xxx xxx xxx
The answer to this question seems an obvious one. The appointment being
the sole act of the President, must be completely evidenced, when it is
shown that he has done everything to be performed by him.

Bautista vs Salonga

xxx xxx xxx

Some point of time must be taken when the power of the executive over an
officer, not removable at his will must cease. That point of time must be
when the constitutional power of appointment has been exercised. And this
power has been exercised when the last act, required from the person
possessing the power, has been performed. ....
xxx xxx xxx
But having once made the appointment, his (the President's) power over
the office is terminated in all cases, where by law the officer is not
removable by him. The right to the office is then in the person appointed,
and he has the absolute, unconditional power of accepting or rejecting it.
xxx xxx xxx
THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989
It is respondent Commission's submission that the President, after the appointment of 17
December 1988 extended to petitioner Bautista, decided to extend another appointment (14
January 1989) to petitioner Bautista, this time, submitting such appointment (more accurately,
nomination) to the Commission on Appointments for confirmation. And yet, it seems obvious
enough, both in logic and in fact, that no new or further appointment could be made to a
position already filled by a previously completed appointment which had been accepted by the
appointee, through a valid qualification and assumption of its duties.
Respondent Commission vigorously contends that, granting that petitioner's appointment as
Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the
Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is
within the president's prerogative to voluntarily submit such appointment to the Commission
on Appointment for confirmation. The mischief in this contention, as the Court perceives it,
lies in the suggestion that the President (with Congress agreeing) may, from time to time move
power boundaries, in the Constitution differently from where they are placed by the
Constitution.
The Court really finds the above contention difficult of acceptance. Constitutional Law, to
begin with, is concerned with power not political convenience, wisdom, exigency, or even
necessity. Neither the Executive nor the Legislative (Commission on Appointments) can create
power where the Constitution confers none. The evident constitutional intent is to strike a
careful and delicate balance, in the matter of appointments to public office, between the
President and Congress (the latter acting through the Commission on Appointments). To tilt
one side or the other of the scale is to disrupt or alter such balance of power. In other words, to
the extent that the Constitution has blocked off certain appointments for the President to make
with the participation of the Commission on Appointments, so also has the Constitution
mandated that the President can confer no power of participation in the Commission on
Appointments over other appointments exclusively reserved for her by the Constitution. The
exercise of political options that finds no support in the Constitution cannot be sustained.

Lipat, Jeanelle Rose R.

JD1 Consti1

Nor can the Commission on Appointments, by the actual exercise of its constitutionally
delimited power to review presidential appointments, create power to confirm appointments
that the Constitution has reserved to the President alone. Stated differently, when the
appointment is one that the Constitution mandates is for the President to make without the
participation of the Commission on Appointments, the executive's voluntary act of submitting
such appointment to the Commission on Appointments and the latter's act of confirming or
rejecting the same, are done without or in excess of jurisdiction.
EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON
APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY
BELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN
APPOINTMENT COULD BE MADE ON 14 JANUARY 1989

Bautista vs Salonga

We do not agree that the petition has become moot and academic. To insist on such a posture is
akin to deluding oneself that day is night just because the drapes are drawn and the lights are
on. For, aside from the substantive questions of constitutional law raised by petitioner, the
records clearly show that petitioner came to this Court in timely manner and has not shown
any indication of abandoning her petition.
Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full
text of which is as follows:
WHEREAS, the Constitution does not prescribe the term of office of the
Chairman and Members of the Commission on Human Rights unlike those
of other Constitutional Commissions;

Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily
allow the Commission on Appointments to exercise the power of review over an appointment
otherwise solely vested by the Constitution in the President. Yet, as already noted, when the
President appointed petitioner Bautista on 17 December 1988 to the position of Chairman of
the Commission on Human Rights with the advice to her that by virtue of such appointment
(not, until confirmed by the Commission on Appointments), she could qualify and enter upon
the performance of her duties after taking her oath of office, the presidential act of
appointment to the subject position which, under the Constitution, is to be made, in the first
place, without the participation of the Commission on Appointments, was then and there a
complete and finished act, which, upon the acceptance by Bautista, as shown by her taking of
the oath of office and actual assumption of the duties of said office, installed her, indubitably
and unequivocally, as the lawful Chairman of the Commission on Human Rights for a term of
seven (7) years. There was thus no vacancy in the subject office on 14 January 1989 to which
an appointment could be validly made. In fact, there is no vacancy in said office to this day.

NOW, THEREFORE, I, CORAZON C. AQUINO, President of the

Philippines, do hereby order:

Nor can respondents impressively contend that the new appointment or re-appointment on 14
January 1989 was an ad interim appointment, because, under the Constitutional design, ad
interim appointments do not apply to appointments solely for the President to make, i.e.,
without the participation of the Commission on Appointments.Ad interim appointments, by
their very nature under the 1987 Constitution, extend only to appointments where the review
of the Commission on Appointments is needed. That is why ad interim appointments are to
remain valid until disapproval by the Commission on Appointments or until the next
adjournment of Congress; but appointments that are for the President solely to make, that is,
without the participation of the Commission on Appointments, can not be ad
interim appointments.

(Sgd.)
CORAZON
President of the Philippines

EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF
THE CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS
SHALL BE AT THE PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL.
Respondent Mallillin contends that with or without confirmation by the Commission on
Appointments, petitioner Bautista, as Chairman of the Commission on Human Rights, can be
removed from said office at anytime, at the pleasure of the President; and that with the
disapproval of Bautista's appointment (nomination) by the Commission on Appointments,
there was greater reason for her removal by the President and her replacement with
respondent Mallillin Thus, according to respondent Mallillin the petition at bar has become
moot and academic.

SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is

hereby amended to read as follows:
The Chairman and Members of the Commission on Human Rights shall be
appointed by the President. Their tenure in office shall be at the pleasure
of the President.
SEC. 2. This Executive Order shall take effect immediately. DONE in the
City of Manila, this 30th day of June, in the year of Our Lord, nineteen
hundred and eighty-seven.
C.

AQUINO

By the President:
(Sgd.)
JOKER
Executive Secretary 24

P.

ARROYO

Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163
issued by the President, Sec. 2(c) of which provides:

25

was

Sec. 2(c). The Chairman and the Members of the Commission on Human
Rights shall be appointed by the President for a term of seven years
without reappointment. Appointments to any vacancy shall be only for the
unexpired term of the predecessor.
It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of
the Chairman and Members of the Commission on Human Rights which is seven (7) years
without reappointment the later executive order (163-A) speaks of the tenure in office of the
Chairman and Members of the Commission on Human Rights, which is "at the pleasure of the
President."
6

Lipat, Jeanelle Rose R.

JD1 Consti1

Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief
Justice) Concepcion in his concurring opinion in Alba vs. Evangelista, 26 stated:
The distinction between "term" and "tenure" is important, for, pursuant to
the Constitution, "no officer or employee in the Civil Service may be
removed or suspended except for cause, as provided by law" (Art. XII,
section 4), and this fundamental principle would be defeated if Congress
could legally make the tenure of some officials dependent upon the
pleasure of the President, by clothing the latter with blanket authority to
replace a public officer before the expiration of his term. 27
When Executive Order No. 163 was issued, the evident purpose was to comply with the
constitutional provision that "the term of office and other qualifications and disabilities of the
Members of the Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art.
XIII, 1987 Constitution).
As the term of office of the Chairman (and Members) of the Commission on Human Rights, is
seven (7) years, without reappointment, as provided by Executive Order No. 163, and
consistent with the constitutional design to give the Commission the needed independence to
perform and accomplish its functions and duties, the tenure in office of said Chairman (and
Members) cannot be later made dependent on the pleasure of the President.
Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra,
because the power of the President, sustained therein, to replace a previously appointed vicemayor of Roxas City given the express provision in Sec. 8, Rep. Act No. 603 (creating the City
of Roxas) stating that the vice-mayor shall serve at the pleasure of the President, can find no
application to the Chairman of an INDEPENDENT OFFICE, created not by statute but by the
Constitution itself. Besides, unlike in the Alba case, here the Constitution has decreed that the
Chairman and Members of the Commission on Human Rights shall have a "term of office."
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and
created by the Constitution to be independent as the Commission on Human Rights-and vested
with the delicate and vital functions of investigating violations of human rights, pinpointing
responsibility and recommending sanctions as well as remedial measures therefor, can truly
function with independence and effectiveness, when the tenure in office of its Chairman and
Members is made dependent on the pleasure of the President. Executive Order No. 163-A,
being antithetical to the constitutional mandate of independence for the Commission on
Human Rights has to be declared unconstitutional.
The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its
constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly
point to its being plainly at war with the constitutional intent of independence for the
Commission. Thus
MR. GARCIA (sponsor). Precisely, one of the reasons why it is important
for this body to be constitutionalized is the fact that regardless of who is
the President or who holds the executive power, the human rights issue is
of such importance that it should be safeguarded and it should be
independent of political parties or powers that are actually holding the
reins of government. Our experience during the martial law period made

Bautista vs Salonga

us realize how precious those rights are and, therefore, these must be
safeguarded at all times.
xxx xxx xxx
MR. GARCIA. I would like to state this fact: Precisely we do not want the
term or the power of the Commission on Human Rights to be coterminous
with the president, because the President's power is such that if he appoints
a certain commissioner and that commissioner is subject to the President,
therefore, any human rights violations committed under the person's
administration will be subject to presidential pressure. That is what we
would like to avoid to make the protection of human rights go beyond
the fortunes of different political parties or administrations in power. 28
xxx xxx xxx
MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the
honorable Chief Justice Concepcion and retired Justice J.B.L. Reyes and
they believe that there should be an independent Commission on Human
Rights free from executive influence because many of the irregularities on
human rights violations are committed by members of the armed forces
and members of the executive branch of the government. So as to insulate
this body from political interference, there is a need to constitutionalize
it. 29
xxx xxx xxx
MR. SARMIENTO: On the inquiry on whether there is a need for this to
be constitutionalized, I would refer to a previous inquiry that there is still a
need for making this a constitutional body free or insulated from
interference. I conferred with former Chief Justice Concepcion and the
acting chairman of the Presidential Committee on Human Rights, retired
Justice J.B.L. Reyes, and they are one in saying that this body should be
constitutionalized so that it will be free from executive control or
interferences, since many of the abuses are committed by the members of
the military or the armed forces. 30
xxx xxx xxx
MR. SARMIENTO. Yes, Congress can create this body, but as I have said,
if we leave it to Congress, this commission will be within the reach of
politicians and of public officers and that to me is dangerous. We should
insulate this body from political control and political interference because
of the nature of its functions to investigate all forms of human rights
violations which are principally committed by members of the military, by
the Armed Forces of the Philippines. 31
xxx xxx xxx
7

Lipat, Jeanelle Rose R.

JD1 Consti1

MR. GARCIA. The critical factor here is political control, and normally,
when a body is appointed by Presidents who may change, the commission
must remain above these changes in political control. Secondly, the other
important factor to consider are the armed forces, the police forces which
have tremendous power at their command and, therefore, we would need a
commission composed of men who also are beyond the reach of these
forces and the changes in political administration. 32
xxx xxx xxx
MR MONSOD. Yes, It is the committee's position that this proposed
special body, in order to function effectively, must be invested with an
independence that is necessary not only for its credibility but also for the
effectiveness of its work. However, we want to make a distinction in this
Constitution. May be what happened was that it was referred to the wrong
committee. In the opinion of the committee, this need not be a commission
that is similar to the three constitutional commissions like the COA, the
COMELEC, and the Civil Service. It need not be in that article. 33
xxx xxx xxx
MR. COLAYCO. The Commissioners earlier objection was that the Office
of the President is not involved in the project. How sure are we that the
next President of the Philippines will be somebody we can trust?
Remember, even now there is a growing concern about some of the
bodies, agencies and commission created by President Aquino. 34

Bautista vs Salonga

said court. 37 This is due process in action. This is the way of a government of laws and not of
men.
A FINAL WORD
It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista
had elevated her case to this Tribunal, Her Excellency merely designated an Acting Chairman
for the Commission on Human Rights (pending decision in this case) instead of appointing
another permanent Chairman. The latter course would have added only more legal difficulties
to an already difficult situation.
WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the
duly appointed Chairman of the Commission on Human Rights and the lawful incumbent
thereof, entitled to all the benefits, privileges and emoluments of said office. The temporary
restraining order heretofore issued by the Court against respondent Mallillin enjoining him
from dismissing or terminating personnel of the Commission on Human Rights is made
permanent.
SO ORDERED.
Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes and Regalado, JJ.,
concur.
Fernan, C.J., took no part, having administered petitioner's oath of office.
Sarmiento, J., took no part, respondent Mallillin is my godson.

xxx xxx xxx

.... Leaving to Congress the creation of the Commission on Human Rights
is giving less importance to a truly fundamental need to set up a body that
will effectively enforce the rules designed to uphold human rights. 35
PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE
To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of
Chairman of the Commission on Human Rights by virtue of her appointment, as such, by the
President on 17 December 1988, and her acceptance thereof, is not to say that she cannot be
removed from office before the expiration of her seven (7) year term. She certainly can be
removed but her removal must be for cause and with her right to due process properly
safeguarded. In the case of NASECO vs. NLRC, 36 this Court held that before a rank-and-file
employee of the NASECO, a government-owned corporation, could be dismissed, she was
entitled to a hearing and due process. How much more, in the case of the Chairman of
a constitutionally mandated INDEPENDENT OFFICE, like the Commission on Human
Rights.
If there are charges against Bautista for misfeasance or malfeasance in office, charges may be
filed against her with the Ombudsman. If he finds a prima facie case against her, the
corresponding information or informations can be filed with the Sandiganbayan which may in
turn order her suspension from office while the case or cases against her are pending before
8